Salvatore v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRIAN SALVATORE CIVIL ACTION

VERSUS

ROBERT SMITH, ET AL. NO. 24-00270-BAJ-RLB

RULING AND ORDER

Before the Court is Plaintiff’s Motion For Temporary Restraining Order

And Preliminary Injunction (Doc. 4), seeking entry of a temporary restraining

order and preliminary injunction against Defendants Robert Smith and Carlton

Jones, each in their respective official capacity, from proceeding with a termination

hearing for Plaintiff, a tenured professor at Louisiana State University Shreveport

(LSUS), on April 8, 2024. (Doc. 1). For reasons that follow, Plaintiff’s Motion will be

denied.

Federal Rule of Civil Procedure (“Rule”) 65(b) provides:

The court may issue a temporary restraining order without written or

oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that

immediate and irreparable injury, loss, or damage will result to the

movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give

notice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b) (emphasis added).

Plaintiff alleges that he will suffer irreparable harm should the April 8

termination hearing go forward because the notice and procedures for said hearing

are inadequate. (Doc. 1 at ¶ 32). Plaintiff also contends that he will suffer irreparable

harm should the hearing proceed because, if he is terminated, then the termination

will be due to Plaintiff exercising his constitutionally protected right to free speech.

(Id. at ¶ 17).

Regarding the latter contention, it is not clear to the Court at this time that

the grounds for which Plaintiff’s termination is sought, (Doc. 1-5), violate the First

Amendment, or which grounds Plaintiff’s termination will be based on, or whether

Plaintiff will be terminated at all. This is therefore an insufficient reason for the

Court to grant Plaintiff’s Motion.

Injunctive relief is generally an “extraordinary remedy which requires the

movant to unequivocally show the need for its issuance.” Valley v. Rapides Par. Sch.

Bd., 118 F.3d 1047, 1050 (5th Cir. 1997) (citing Allied Mktg. Group, Inc. v. C.D.L.

Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989)). As in Ryon v. Burkhalter, Plaintiff has

not shown that he “will not receive a favorable outcome in the administrative hearing

which [he] seek[s] to enjoin,” and thus is not entitled to injunctive relief on this basis.

No. CIV.A. 08-333-C, 2008 WL 2704833, at *1 (M.D. La. July 7, 2008).

Further, per LSUS Policy Statement 2.19.02, Plaintiff will have the

opportunity to challenge any result or finding of the termination hearing through

additional written briefs, which will then be reviewed by LSU President William F.

Tate, IV, and the Board of Supervisors of Louisiana State University – each of which

must approve of Plaintiff’s termination. Again, the April 8 hearing does not

necessarily mean that Plaintiff will be fired, and said hearing is not the final chance

for Plaintiff to argue his case. LSUS Policy Statement 2.19.02. Accordingly, Plaintiff’s

potential termination fails to amount to the “immediate and irreparable harm

necessary to justify the issuance of a temporary restraining order.” Ryon, No. CIV.A.

08-333-C, 2008 WL 2704833, at *1.

Plaintiff’s former contention, that the notice and procedures for the

termination hearing are inadequate, likewise does not support a grant of injunctive

relief. In addition to being required to show that immediate and irreparable harm

will result absent intervention from the court, movants must also clearly demonstrate

a substantial likelihood of prevailing on the merits to be granted a temporary

restraining order. Valley, 118 F.3d at 1051; Garza v. Starr Cnty., 309 F. Supp. 3d 454,

456 (S.D. Tex. 2018). Plaintiff’s arguments as to the notice and procedures for the

termination hearing fail on both fronts.

Plaintiff contends that notice for the hearing is inadequate because it does not

provide him with sufficient time to prepare for or necessary information relating to

the hearing’s content. (Doc. 1 at ¶ 32). Defendant Smith provided notice to Plaintiff

that he was seeking Plaintiff’s termination on November 8, 2023. (Doc. 1-5). Included

in this notice were thirteen “charges,” each of which contained a factual description

of the facts and circumstances surrounding said charge, and a brief summary of the

LSUS Policy Statement under which Plaintiff’s termination was sought. (Id.).1

Plaintiff responded to this notice on December 11, 2023. (Doc. 1-6). Plaintiff’s

1 The Court pauses to note that Plaintiff’s five-month delay in bringing this Motion after being

notified of his potential termination appears curiously at odds with Plaintiff’s current

position as to the immediacy and gravity of the situation.

response took the form of a seventeen-page letter that responded to each charge in a

detailed and substantive manner. (Id.). On March 6, 2024, Plaintiff was instructed

that his termination hearing would take place on April 3, 2024. (Doc. 1-7). The Court

presumes that this hearing was rescheduled to April 8, 2024. (Doc. 1 at ¶ 16). Per the

March 6 notice, Plaintiff has already been and will be provided with 1) a list of

adverse witnesses that will be called at the termination hearing, 2) any documentary

evidence to be used against him, 3) the presence and advice of his legal counsel at the

hearing, and 4) the opportunity to cross examine any witnesses. (Doc. 1-7 at p. 2).

Plaintiff’s Complaint and Memorandum In Support, (Doc. 1-2), do not show

that the foregoing violates any state or federal law. Indeed, the above appears to

satisfy each of the various standards demanded by Plaintiff. The November 8 letter

provided the “grounds upon which . . . dismissal is based,” which in this case is LSUS

Policy Statement 2.19.02, (Doc. 1-5), as well as a “short and clear statement of the

facts.” LSA-R.S. 17:3104. These grounds and facts were incorporated in the March 6

letter notifying Plaintiff of the date, time, and procedure of his termination hearing,

which also appears to satisfy LSA-R.S. 49:975. Plaintiff has provided no case law in

support of his contention that a month is not a “reasonable” amount of time for notice

of a termination hearing under LSA-R.S. 49:975. Further, as noted above, Plaintiff

was made aware of the charges to be addressed at his termination hearing well before

March 6. (Doc. 1-5).

The procedural due process rights for a terminated professor under federal law,

as provided in Walsh v. Hodge, likewise appear to be satisfied. See 975 F.3d 475, 482

(5th Cir. 2020). The various notices sent to Plaintiff have advised him of the various

grounds upon which Defendants seek his termination, Plaintiff has presumably been

provided with the names of any witnesses to be brought against him, to the extent

Defendants intend to bring any witnesses, and Plaintiff has had the opportunity to

call his own. (Doc. 1-7 at p. 2).Plaintiff will also be provided with a meaningful

opportunity to be heard in his own defense, and the termination hearing will proceed

before a tribunal of Plaintiff’s peers. (Id.). The Court therefore cannot conclude at this

time that the notice and procedures for Plaintiff’s termination hearing violate federal

procedural due process rights. Walsh, 975 F.3d at 482 (citing Levitt v. Univ. of Texas

at El Paso, 759 F.2d 1224, 1226 (5th Cir. 1985)).

Further, the due process rights set forth in In re Dixon also appear to be

satisfied. See 2006-0950 (La. App. 1 Cir. 3/28/07), 960 So. 2d 941, 944 (stating that

“[d]ue process in proceedings . . . requires that a person be informed of the charges

against him; be given the opportunity to present evidence; be represented by counsel;

be allowed to cross-examine witnesses against him; and be given the right to

appeal.”).

Finally, Plaintiff argues that La. R.S. 17:443 has been violated by the notice

and procedure for the termination hearing. (Doc. 1 at ¶ 36). The application of La.

R.S. 17:443 to this matter is dubious.2 That being said, the statute requires written

2 The Court was unable to locate a single case applying LSA-R.S. 17:443 to college professors.

Rather, Nelson v. State Bd. of Ed. suggests that the statute applies only to schoolteachers.

366 So. 2d 948, 950 (La. Ct. App. 1978), writ denied sub nom. Nelson v. the State Bd. of Educ.,

368 So. 2d 142 (La. 1979) (“By comparison, LSA-R.S. 17:443 allows a public school teacher . .

. “).

and signed charges to be given to the tenured teacher prior to any discipline, and for

said teacher to be afforded the opportunity to respond. La. R.S. 17:443. That has

occurred. (Docs. 1-5, 1-6). Thus, even if La. R.S. 17:443 is applicable, it does not

appear to have been violated.

In addition to Plaintiff’s failure to clearly demonstrate that the notice and

procedural requirements under state and federal law have been or will be violated,

Plaintiff does not provide an explanation as to what irreparable harm he will face

should the April 8 termination hearing proceed as noticed and with the procedures

outlined in the March 6 letter, (Doc. 1-7). Plaintiff’s only alleged injury appears to be

his possible termination and the supposed reasons therefor. This was previously

determined to be insufficient grounds for injunctive relief in part because, here, the

April 8 hearing is essentially the beginning, as opposed to the end, of the

administrative process. Based on the foregoing, Plaintiff has clearly shown neither “a

substantial likelihood of success on the merits,” nor “a substantial threat of

irreparable harm” for his notice and procedural claims relating to the April 8

termination hearing. Valley, 118 F.3d at 1051. Plaintiff is therefore not entitled to

the injunctive relief he seeks at this time. Id.

Accordingly,

IT IS ORDERED that Plaintiff’s request for a temporary restraining order be

and is hereby DENIED. The remainder of Plaintiff’s claims and requested relief will

be addressed in the ordinary course.

Baton Rouge, Louisiana, this 7th day of April, 2024

_____________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA